interim applications Flashcards

1
Q

what form is used for interim applications?

A

form N244

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2
Q

Who should make the witness statement for an interim application?

A

The witness statement should be made by the person with the best personal knowledge of the relevant points, typically the client or the solicitor if the application is technical

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3
Q

What should the witness statement include?

A

(a) include the factual information and the evidence in support of the application; and

(b) anticipate the opponent’s case, where appropriate.

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4
Q

Why is it important to provide sufficient detail in the witness statement?

A

To persuade the court to make the order, as there will be
no oral evidence from witnesses at the hearing.

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5
Q

What should be attached to the witness statement?

A

Relevant documents should be attached to support the application.

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6
Q

How many days before the court hearing must the application notice be served on the opponent?

A

3 CLEAR DAYS before the hearing

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7
Q

What does “clear days” mean in terms of service?

A

Clear days” means excluding the date of service and the date of the hearing, as well as weekends and bank holidays.

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8
Q

What is a consent order?

A

where parties have reached an agreement on the order they require, they can apply to the court
for an order to be made by consent without the need for attendance at the hearing.

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9
Q

What is the main advantage of a consent order?

A

promotes the overriding objective to deal with cases JUSTLY and at PROPORTIONATE COSTS => no need for parties to attend trial when consent order submitted.

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10
Q

What is the general rule about notice for applications in court?

A

The general rule is that applications must be made on notice to the other party, ensuring they are aware and can file evidence in response.

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11
Q

What are the exceptions to the general rule of making applications on notice?

A

Applications can be made without notice when there is exceptional urgency or when the overriding objective of the CPR is best achieved by doing so.

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12
Q

what is an example of an application made without notice?

A

freeze the opponent’s financial assets or search their premises, where giving notice would defeat the purpose of the application.

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13
Q

What must the applicant do when making an application without notice?

A

The applicant must explain why notice was not given

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14
Q

when making an application without notice, what is applicant required to do?

A

The applicant has a duty of full and frank disclosure = they cannot take advantage of the respondent’s absence at the hearing =
must draw the court’s attention to evidence and arguments they reasonably anticipate the
respondent would make.

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15
Q

What documents must be served on the respondent after an order is made without notice?

A

(a) the court order,
(b) the application notice,
(c) any supporting evidence.

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16
Q

How can the respondent challenge an order made without notice?

A

The respondent can apply to set aside or vary the order within 7 days of it being served upon them.

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17
Q

What is the general rule regarding interim applications with a time estimate of one hour or less?

A

interim applications with a time estimate of one hour or less will be conducted by telephone if at all possible

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18
Q

what happens in a ‘named party’ costs order

A

The party named in the order is entitled
to their costs of the interim application
whatever other costs orders are made
in the proceedings

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19
Q

What happens if fixed costs do not apply in an interim application?

A

The court will usually summarily assess the costs and order the losing party to pay them within 14 days.

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20
Q

when would a ‘named party’ costs order apply?

A

When there is a clear ‘winner’ such as
where the claimant succeeds in their
application for summary judgement or ‘claimants costs’

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21
Q

What happens in an order for “costs in the case”?

A

No party is named to pay costs at this stage, neither party can recover their costs

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22
Q

when is ‘costs in the case’ applicable?

A

Applies when the court makes a conditional order e.g., requiring D to file a defence and if they fail to then C can receive costs.

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23
Q

What does “No order as to costs” mean in a court order?

A

It means that each party is responsible for their own costs of the interim application, and no one will be required to pay the other party’s costs.

24
Q

When is a “No order as to costs” likely to be made?

A

It is often made when the outcome of the interim application is a draw, with neither party being at fault or responsible for additional costs.

25
Q

What solution does Part 24 of the CPR provide for weak defenses?

A

Part 24 of the CPR allows for summary judgment, which enables the claimant to bring the matter to an early conclusion.

26
Q

Who can apply for summary judgment?

A

Claimant or Defendant can apply for a summary judgement.

27
Q

What are the two conditions under Rule 24.3 for the court to grant summary judgment?

A

the court may give summary judgment on the whole of the claim or on an
issue if:

(a) it considers that the party has no real prospect of succeeding on the claim, defence or
issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

28
Q

When are cases not suitable for summary judgment?

A

a. Cases that involve complex issues needing proper investigation at trial or
b. difficult questions of law are generally not suitable for summary judgment

29
Q

What are the compelling reasons to allow a case to go to trial?

A
  • The need to allow more time for investigation, such as contacting an important witness.
  • The claim or defense is highly complicated or technical and requires all available evidence at trial.
  • The need to hear from witnesses, especially when oral evidence is crucial for disputed issues (e.g., terms of a contract).
30
Q

What must a claimant applicant prove in a summary judgment application?

A

The claimant must prove BOTH :

  1. The defendant has no real prospect of successfully defending the claim.
  2. There is no other compelling reason why the matter should proceed to trial.
31
Q

What must a defendant respondent do to prevent summary judgment from being granted?

A

The defendant only needs to succeed in preventing the claimant from proving one aspect (either no real prospect of success or no compelling reason for trial) to ensure the dismissal of the summary judgment application.

32
Q

Is permission required to make an application for summary judgement?

A

The only
occasion where the court’s permission is required is where the claimant wishes to apply
before the defendant has filed an acknowledgement of service or a defence.

33
Q

What form is used to apply for summary judgment?

A

N244

34
Q

What are the notice requirements for the respondent in a summary judgment application?

A
  • The respondent must be given at least 14 days’ notice of the hearing date.
  • The respondent must file and serve any written evidence at least 7 days before the hearing.
35
Q

What are the requirements for the applicant to submit further evidence in a summary judgment application

A

If the applicant wishes to rely on additional evidence, it must be filed and served at least 3 days before the hearing.

36
Q

What happens when ‘judgment on the claim’ is granted in a summary judgment application?

A

The claimant has succeeded in their application
for summary judgment and the matter will proceed to enforcement.

37
Q

What is the outcome when the claim is struck out or dismissed?

A

The defendant has succeeded in their application, and the claimant’s case comes to

38
Q

What does it mean when the application for summary judgment is dismissed?

A

The applicant has failed to bring the case to an early conclusion, and it will now proceed toward trial.

39
Q

What is a conditional order in a summary judgment application?

A

the application has not been granted - neither side has won.

40
Q

When can a party seek an injunction?

A

A party may seek an injunction at any time after proceedings have commenced, and in exceptional cases, even beforehand.

41
Q

What must the court be satisfied of before granting an injunction?

A

The court must be satisfied that the matter is
urgent or it is otherwise desirable in the interests of justice.

42
Q

What are interim injunctions?

A

Interim injunctions are orders granted before trial and remain in force until the trial.

43
Q

How are injunctions distinguished from other court orders?

A

Breach of an injunction is punishable as a contempt of court.

44
Q

Are injunctions automatically granted?

A

No, they are a discretionary remedy.

45
Q

When may an injunction be granted?

A

when damages are not an adequate remedy for the applicant.

46
Q

What is a cross-undertaking in the context of interim injunctions?

A

The applicant’s undertaking to the court to pay any damages that the respondent sustains by reason of the injunction - injunction was unnecessary in circumstances.

47
Q

When may the court grant an interim remedy on an application made without notice under Part 25?

A

The court may grant an interim remedy without notice if there are good reasons, such as insufficient time or the risk that giving notice would enable the defendant to harm the claimant (e.g., destroying evidence).

48
Q

What injunctions can be granted without notice?

A
  1. freezing injunction
  2. search order
49
Q

What type of evidence must support applications for freezing injunctions and search orders?

A

The applications must be supported by evidence in the form of an affidavit.

50
Q

What is the purpose of an interim payment?

A

an advance payment on account of any damages, debt or other sum (excluding costs) that a
defendant may be held liable to pay. - Helping the claimant avoid financial hardship during the delay between starting the claim and its final determination.

51
Q

When should a claimant apply for an interim payment?

A

After the time for acknowledging service has expired and only if a voluntary interim payment cannot be negotiated with the defendant or their insurer.

52
Q

What evidence must support an application for an interim payment?

A
  • the amount requested and what it will be used for;
  • the amount of the sum of money that is likely to be awarded at final judgment; and
  • the reasons for believing that the grounds required by the CPR are satisfied
53
Q

What are the timing requirements for an interim payment application?

A
  • Application notice must be served at least 14 days before the hearing.
  • Respondent’s evidence must be served at least 7 days before the hearing.
  • Applicant’s further evidence must be served at least 3 days before the hearing.
54
Q

What are the grounds for an interim payment under Part 25 of the CPR?

A

(a) The defendant has admitted liability.

(b) The claimant has obtained judgment against the defendant for damages to be assessed or a sum of money.

(c) The court is satisfied that the claimant would obtain judgment for a substantial amount of money (other than costs) if the case went to trial => C must prove, on the balance of probabilities, that they will succeed at trial

55
Q

Should an order for an interim payment be made?

A

If the issues are complicated or difficult questions of law arise, the court may decide not
to order an interim payment at al

56
Q

What is the maximum amount the court can order as an interim payment?

A

The court cannot order more than a reasonable proportion of the likely amount of the final judgment. It must account for factors such as contributory negligence and any counterclaims.